SEO Book’s Aaron Wall was sued earlier this week by Traffic-Power.com for alleged inaccuracies and lies appearing in comments other people have left on his blog. If this case goes to trial, it’ll set an important precedent in the blogging community and the Internet at large, answering a critical question, particularly for business blogs: are the comments others leave on your blog a legal liability?
Some background: Aaron Wall runs SEO Book.com, a site focused on search engine optimization strategies and on selling his smart ebook of the same name. In a discussion venue of that nature, it’s no surprise that community members talk about different SEO firms, positively and negatively, and one company that’s been the frequent recipient of negative comments on Aaron’s blog is Traffic Power.com.
Earlier this week Aaron was surprised by a certified letter from a Nevada Attorney’s office notifying him that the parent company of Traffic-Power.com was suing him for the content of his weblog.

With Aaron’s permission, I reproduce some relevant sections of the notification in question:
“Plaintiff undertakes rigorous and extensive measures to safeguard information about its business. Internet placement optimization is a highly competitive business, and if Plaintiff’s trade secrets are revealed competitors can gain a prejudicially unfair advantage over Plaintiff. Accordingly, Plaintiff’s trade secrets are provided to a limited number of people, only on a need-to-know basis and subject to strict confidentiality agreements.
“An unidentified individual, acting alone or in concert with others, has recently misappropriated and disseminated through web sites Plaintiff’s confidential information. This information could have been obtained only through a breach of Plaintiff’s confidentiality agreement. The unauthorized use and distribution of this information violates Nevada’s trade secrets statue and has caused irreparable harm to Plaintiff.”
A bit further down, the lawsuit mentions specific individuals who posted comments on the SEO Book blog, naming them as “John Doe’s”:
“At unknown date or dates, Doe I, alone or in concert with Does I through X, began disseminating Plaintiff’s trade secrets to the public, with such information now available on various web sites. Among other things, Defendant or Defendants posted proprietary relating to Plaintiff’s solicitation, procedures on publicly accessible areas of the internet.”
and
“The false and defamatory matter is calculated to damage Plaintiff’s reputation, and at the time Defendants published or caused to be published such false and defamatory information about the Plaintiff over the internet, Defendants knew that the information published was false and defamatory and making such defamatory publication, Defendants acted with malice toward the Plaintiff.”
Aaron has a long posting on his blog about both the lawsuit and his thoughts on how to respond, at Notice! You Have Been Sued!, but I have counseled him to remove the posting until he gets legal counsel of his own, so that link might vanish at any time.
As with any lawsuit, there are some very interesting aspects to this one, but if you boil it down to its essence, the plaintiff is claiming damages of $10,000 and irreparable harm due to comments that other people left on Aaron’s blog.
I’m certainly not a lawyer, but as a widely published writer, I’m well aware that legal precedent holds that if you moderate, edit, or prune comments on your online forum — or blog — in any way at all then you stop being able to defend yourself as a common carrier and become a publisher who is, indeed, liable for the content that they publish.
A common carrier is best exemplified by AT&T: since they don’t make phone connection decisions based on what topic is going to be discussed but blindly connect all phone calls, they cannot be held liable for any telephone conversations. Similarly, Dish Network and Comcast cable disseminate all programming from the channels they carry, also putting them in the common carrier categorization. Clear Channel, however, is reputed to axe certain programming if it doesn’t meet their programming guidelines, an editorial policy that should theoretically leave them directly liable for the accuracy of the content they disseminate into the public airwaves.
What I find most telling about this lawsuit is that it’s aimed directly at a blog and a blogger, not related to what the blogger is writing about, but about what others are adding in his comments. By leaving those comments intact while deleting comment spam, obscenities, pre-teen p0rn drivel, etc., Aaron has indeed walked into a surprise firestorm of legal troubles.
However this case may turn out, I see it as a wakeup call to business bloggers who haven’t yet thought through their own comment and comment moderation strategies. In a nutshell: what liability are you exposing yourself to by not strictly moderating the content of your entire blog, not just your own articles?
(Here’s some background reading too, an article I wrote a while ago about crafting the ideal business blog comment strategy.)

50 comments on “SEO Book’s Aaron Wall sued over comments on his weblog”

I hate Traffic Power [dot] com. They are using an esoteric legal complexity to censor Freedom of Speech.
If a blogger has the burden of verifying the veracity of every single comment posted to his/her blog, that will in effect end all blogging forever.
We cannot do this, and they know it.
I hate all politicians, religions, and corporations who set themselves against the blogosphere.
We shall fight such censorship and do whatever damage we can to those who oppose us.
Fight, bloggers, fight with all your might.

Dave, This is a very interesting post. Here’s another twist … what if you delete obvious comment spam? Are you still a common carrier? I hope the Electronic Frontier Foundation gets into this one. It truly could have a chilling effect on the openness that has made the blogosphere what it is. For example, Kryptonite could have started nusance lawsuits against many blogs or sites. Sure it would clearly fall under freedom of speech, but the time and money spent by individuals would have been terrible. This is a common practice that big corporations use against environmentalists and others when they want to shut them up … by drowning them in lawyers.

Thank you for editing my comment. You deleted some very harsh and F word sentences, and I am grateful for that. I wrote in the heat of mentally violent hatred toward those who are trying to censor and destroy the blogosphere.
Tris brings up some very important points. We need to put aside our little squabbles and join forces to defend the blogosphere.
Thanks, Tris, for enriching the debate with your great insight.
:^)
And thanks, Dave, for preventing me from looking like an maniacal and vulgar zealot. You have my permission to edit any of my comments at any time. I trust your wise and mature judgement.

I’ll be watching this unfold. Dave do you have a contact within the legal community that might want to be interviewe about this exact topic? I think it would make a great series of posts to discuss blogs and liability.

Speaking as one of those dead PR people 😉 (who also blogs), I wrote about this issue back in February, then republished the post last week because of a comment on my blog.
As a PR blogger, I thought it was of the utmost importance to figure out where blogs stood in cases of libel, and how clients should protect themselves. And, as someone that was going to blog his views and opinions, I myself needed to be protected.
Should we be suprised? Not at all. What’s the answer? I’m not sure.

Dave,
I am the lawyer and former judge who met you at the 2005 Blog Business Summit. I enjoyed your entertaining Blogging 101 Workshop. I was sorry to hear about the lawsuit against Aaron Wall. As you have correctly emphasized, bloggers may prevent such lawsuits through an appropriate blog comment strategy.
First, some observations about the lawsuit. It is likely that a Nevada judge will elect to exercise personal jurisdiction over Aaron in Nevada. In cases which support personal jurisdiction, judges see the key issue to be whether the harm is directed to a citizen of its state – in this case the company. Some judges have even supported personal jurisdiction over such minor “contacts” as returning a telephone call to the other state.
Claim for Misappropriation of Trade Secrets – Trade secrets are usually lost once reproduced on the Internet. Nevada statutes preserve those secrets if the owner of the secret takes some overt action to reinforce its protected status. Overt action could include a timely “cease and desist” letter. However, it appears that the cease and desist letter to Aaron was not timely. But the most significant weakness of this claim against Aaron is that he had no confidential relationship with the company. Nor was he an agent of the person who did misappropriate such information. In short, Aaron did not improperly obtain this information. A Nevada judge may order the company to reimburse Aaron his attorney’s fees if the judge finds that the company’s claim of misappropriation was made in bad faith.
Claim for Injunctive Relief – A judge will only issue an injunction if it appears reasonably certain that the company has a likelihood of success in its claim against Aaron and a danger of great or irreparable injury to the company. There is not a likelihood of the company’s success against Aaron. Aaron’s willingness to remove the offending information (as you correctly advised) will certainly eliminate the danger of great or irreparable injury. In short, it is very unlikely that a judge would issue the company’s requested injunction.
Claim for Punitive Damages – The company’s claim for punitive damages will also likely fail. Aaron’s conduct does not demonstrate a willful wrong. Without substantial evidence of oppression, fraud or malice, even unconscionable irresponsibility will not support a punitive damages award.
Claim for Defamation – The defamation claim as written will likely fail as Aaron cannot defame a corporation. Aaron could disparage a business but the lawsuit must be more specific. Aaron is also partially immune for for the reposting of even defamatory information on his website under a federal statute. A judge may have some concern, though, that the defamatory posts appear to have been “egged on” by Aaron. A judge may perceive that Aaron is encouraging the disparagement of a competitor and thus acting in “bad faith.” A judge would not be impressed that Aaron edited one “offensive post” and yet allowed other posters to trash the company in heated and vulgar terms. As an example of an inappropriate post that Aaron apparently allowed “… [Company] is just a bunch of cheep everyday crooks. They should all be in jail.” Aaron, in moderation of comments, should have eliminated this post as not contributing to the conversation.
More importantly, Aaron unwisely responded to comments posted regarding the company in a tirade which questioned the company�s legitimacy and ethics. The responses are still posted on his website. They include:
� �If they are calling you it most likely means that they do not understand the concepts of reverse broadcast networks and they are no good at their job.� [Emphasis by Aaron]
� �Would you bet your financial future on a random telemarketer who knew nothing about marketing …?�
� �I post my information based on the fact that they cold called me offering to sell their services to me for a site that is complete garbage that I would not work on if somebody wanted me to … I use that site as a �catcher of fraudsters and hucksters� and [company] called me. … The fact that their site has been banned by the search engines speaks volumes for the [company]site … I get my [company] information from my server logs and the fact that [company] called me to promote a horrible website.�
� �I am not a competitor so much as I do not like idiotic high pressure salesmen calling me to try to sell me shit services … and since you called me personally to promote a bad site I know your services must suck.�
� In response to a posted comment that only other Search Engine Optimization companies are complaining about [company] power, Aaron replied: �Not true. From emails I have been sent I can tell you that many people complain about them. Are you not awake? Do you pay attention to the world around you? Look at this site: [company] Sucks. There is no commercial SEO relationship on [company] Sucks … simply a site which states the facts as seen by an unhappy customer who did not get their money back.� [Emphasis by Aaron].
� In response to a posted question: �Why would another SEO company claim to have gotten screwed by them?�, Aaron replied: �The SEO companies are not the people getting screwed. It is all the random webmasters who get cold called and buy their services. [company] cold called me. I did not buy their services, thus I did not get screwed by [company].�
� �Why would anyone hire an SEO firm that can’t even rank for their own name?� [Emphasis by Aaron].
� In response to a posted comment that when Google attacked them customers of [company] received rebates, Aaron replied: �Not true. The people at [company] Sucks did not get their money back.�
� �… I would need to shower at least 6 times a day if I worked for a company as dirty as [company].�
� �Since [company]’s site appears to be banned in Google any footprints leading to their site are probably a bad thing through the eyes of Google. Do they have a right to cry about lost traffic, considering all the traffic they had in the first place was obtained by devious means? You get what you pay for.�
� Aaron even directed the visitors to his blog to the company disparagement posted on another website:
� �JUNE 05, 2004 – FUN SITES – Everyone should be able to laugh every once in a while. The last couple days I have been running into a few sites, so I figured it would only be fair to share … Cool site #2 http://www.companysucks.com/ – citation: found this puppy in my server logs. apparently the site owner has a big thumbs down for the services [company] provides. the owner of that site may actually be more blunt than I am!!!�
Aaron should also never have subsequently posted that “There may be something worth suing for in the posts or comments. I am rather naive to the laws that govern such behavior.” Willfully blinding yourself to your legal obligations won’t impress a judge. Bloggers should learn when they need to contact a lawyer. Bloggers don�t need to edit every post or alter the conversation. But they should moderate these comments with a view of how such language will look to a judge or jury.

I wonder, what is the implication of using a spam blocker on comments? Would that be interpreted as “moderating” the comments? What if a blogger uses a hosted platform, and the host has control over the setings of the spam blocker – who is then deemed to be “moderating”, I wonder?

Courts would not consider a spam blocker or host control to be moderation. But that begs the question. The point is that you should be moderating comments to eliminate profanity and other offensive materials.

Wow, this really is something worth considering, Dave.
I agree with Tris that this suit represents a classic abuse of the legal system in order to curtail free speech. In the environmental realm these are known as SLAPP (strategic litigation against public participation) suits. It’s a sleazy, brutish, backfire-prone strategy that usually reflects poorly on organizations which attempt it.
In the environmental realm, SLAPP suits often get withdrawn once they are publicized. Executives and PR folks generally realize that when their overzealous lawyers go to such irrational lengths to attempt to exercise draconian control over public discourse, the organization ultimately pays a huge price in terms of negative publicity — and, often, business. Basically, the blowback is too expensive.
I would encourage bloggers to publicize this case widely — not in a scaremongering (“See what happens if you allow comments!!!”) manner, but rather to leverage our collective strength. Acting together, bloggers can bring the full weight of negative publicity to bear on organizations who would threaten us with frivolous SLAPPs. Censorship typically only thrives when the censored are complicit in secrecy.
Similarly, I would encourage bloggers to consider this issue in formulating their own comment policy. I’ve just added an “agreement” portion to mine which attempts to address both rights and liability issues. (You’ll see it if you want to post a comment to my blog, Contentious.
Thanks again for writing this, Dave.
– Amy Gahran
Editor, CONTENTIOUS

Since blogs are a powerful and increasingly popular vehicle for stating all sorts of controversial, combative, and confrontational viewpoints, there will be misanthropic forces determined to silence or control the blogosphere and its contents.
We have seen the extreme measures used to regulate, license, and stifle expression in radio and television.
I have been predicting that the free-for-all ideological expressive anarchy, or freedom from tyranny, in the blogosphere will not last for long.
The McCain-Feingold legislation, trying to claim that a link to, or even a remark about, a politician is a “financial contribution”, was just one of the early steps in this direction of thought control and mental repression.
Here is the rumbling of yet another avenue of dictatorial control. Amorphous, tangled, and imprecise, the floundering will crystalize eventually into stern measures designed to limit free expression of political, religious, sexual, philosophical ideology.
We in the blogging community must rise up to understand the issues, with the kind help of professionals in the realms of law and ethics.

Dave:
Regarding comment policies:
I like the fact that Amy’s comment policy has text the same size as the rest of the page. Like yours, her notice is located immediately below the “Preview” button. However, your note is of such small text that someone may claim they did not see it. I like the directness of your notice “… you relinquish any rights of ownership of your question and agree that I can rephrase, reword, modify, correct or repurpose your material without limitation or constraint …” Your probably omitted the word “republish” in concern over the use of the word “publish.” The modern trend of courts is to ignore how you describe your efforts so this is likely not a significant issue.
I liked Amy’s explanation of future use. “As for the rights-related stuff at the beginning, who knows, I may want to publish a book someday and include in it comments posted to this blog. That�s not an unreasonable goal or expectation for me, since it�s my blog and since I�m providing a forum for my readers by allowing comments. However, if you happen to think that my expectation of rights is unreasonable, then don�t post a comment here. Simple.” It is prudent to explain what your future potential uses of the information may be. I would stress that you are making a special effort to permit commenting (and track-backs) along with the administrative and editorial headaches of moderating those comments so therefore you are entitled to reuse or repurpose those comments.
I suggested to Amy that she reject the word “AGREEMENT” for the heading. I would probably use “PLEASE POST MY COMMENT” as it will likely mean someone will actually read it. Calling this an agreement will not give it any special standing in a court.
I am uncomfortable with Amy’s language that attempts to deflect responsibility for the comment: “… you acknowledge that you alone are fully responsible for (and bear full legal liability for) the content of this comment � including inaccuracies or potentially libelous statements. You certify that in this comment you have disclosed no proprietary or confidential information. This agreement applies even if you choose to post anonymously or supply false or incomplete identification.” The problem is that courts have historically looked right through that language. In some instances, courts have even rejected “hold harmless” language. A better approach might simply be to state that you will reject any comments which include profane, libelous, abusive, or offensive language. Moreover, you will not knowingly allow comments to be posted or remain posted which contain proprietary or confidential information, spam, off-topic, offensive, uncivil, or otherwise inappropriate posts.
I am also uncomfortable with Amy’s admonition that she does not fact-check. Frankly, there are circumstances when bloggers should fact-check. You apparently do so. If you do so and post that you do not then you are being untruthful. That could boomerang on you.
Daniel Perry

Dave:
Contrary to Amy’s suggestion, I respectfully suggest that bloggers NOT widely publicize Aaron Wall’s situation. His situation is unique. The point of my recent post is that Aaron complicated the case dramatically by engaging in what only could be described as a tirade against the company. This is not to suggest that the company’s conduct was appropriate. But Aaron’s situation is not likely to be the typical problem encountered by another blogger.
Experience with other groups has demonstrated the importance of carefully picking your test case … and figurehead. Some of the ugly details of Aaron’s responses (including use of vulgarities – “shit services”, “sucks”) will follow media reports of this issue.
Daniel Perry

An anti-SLAPP counterclaim is unavailable to Aaron. Nevada has a very limited Anti-SLAPP statute. It is used to protect the right of citizens to petition for governmental relief. Unlike California’s Anti-SLAPP statute, Nevada does not extend the use of its Anti-SLAPP protection to a free speech issue.
Amy correctly points out that SLAPP lawsuits have involved defamation issues. In the very well reasoned 2004 California case of Barrett versus Rosenthal, the California Court of Appeal reversed the trial court’s dismissal based on California’s anti-SLAPP statute. In the California Court of Appeal decision, the appellate court noted that in the Drudge Case, Federal District Judge Friedman granted a motion for summary judgment based on a total immunity argument under a federal statute, 42 United States Code Section 230. The Barrett Court noted that Judge Friedman “… gagged on the unfairness that resulted from such a broad immunity.” The appellate court rejected the trial court’s application of broad total immunity and reversed the trial court’s dismissal of the lawsuit.
“Because [47 United States Code] section 230 does not ‘”‘speak directly’ to the question addressed by the common law”‘ … and is capable of more than one construction, we conclude that the statute should not be interpreted as having abrogated the common law principle of distributor or knowledge-based liability. Rosenthal has not alleged any fact that would prevent her from being subjected to distributor liability under the common law. Appellants allege�they notified her that Bolen’s statement contained false and defamatory information and asked that the statement be removed from the newsgroups on which Rosenthal posted it, that she refused these requests and thereafter repeatedly reposted the allegedly defamatory statements on Internet newsgroups. Rosenthal’s answer denies the statements were false but admits all of the other allegations. However, her special motion to strike under the anti-SLAPP statute was not based on the truth of the statements that Polevoy engaged in criminal conduct [stalking of females] nor did it deny she knew or had reason to know of the defamatory character of these statements. The motion was based solely on the grounds of the federal immunity, appellants’ inability to show ‘”actual malice,”‘ and their failure to plead special damages. Furthermore, Rosenthal has never asserted that, due to the technology or for any other reason, she could not easily have withdrawn and/or corrected the allegedly defamatory materials she posted.”
The appellate court concluded: “Because [47 United States Code] section 230 does not restrict distributor liability under the common law and at this preliminary stage of the litigation no reason appears why Rosenthal cannot be subjected to such liability, the trial court erred in finding that appellant Polevoy’s defamation claim was barred by the statute.”
The case is pending before the California Supreme Court.

Mr. Wall’s attorney may want to review 47 USC � 230 (part of the Federal Communications Act) which says that providers of an �interactive computer service� shall not be treated as the speaker or publisher of any information provided by another. While I am unaware of any court case considering the application of this statute to blogging (and the statute was enacted in 1996), I think that the intent of the statute (to protect ISPs and other content providers) should arguably cover the sponsor of a blog as well.
47 USC � 230(c)(2) has explicit provisions removing civil liability over actions that a provider might take in response to a posting – I would hope Mr. Wall’s attorney reviews those carefully.
DISCLAIMER: I am an attorney licensed to practice in Minnesota, and by posting this note I AM NOT purporting to give legal advice to anyone, nor am I attempting or intending to form an attorney-client relationship with anyone.

Chris:
I am not sure you saw my post – the case pending before the California Supreme Court addresses 47 United States Code � 230. The California Court of Appeal rejected total immunity under the section you emphasize.

Will an erudite scholar please address the issue of blogger initiating a lawsuit against a comment poster, pursuant to his right to protect his blog from cyber vandalism, graffitti, or other defacing of digital property, i.e., the blog itself?
If a comment is researched with due diligence and a reasonable amount of time and effort, and the blogger, based on this prudent activity, is sure in his own necessarily fallible and limited understanding, that the comment is not damaging or false, how can the blogger be liable?
This is a big stinking pile of you know what.

I am sorry to read of the trouble that has befallen Aaron’s Wall and I sincerely hope that the learned and interesting views of Mr. Perry above prove to be of assistance.
As a UK lawyer and blogger, I have spent some time trying to educate my fellow bloggers about precisely this kind of risk. Many bloggers appear to be labouring under the misapprehension that the internet is somehow ‘beyond the reach of the law’. This is not only untrue but actively dangerous.
Here in the UK, all the laws that apply to print or broadcast media apply with equal force to digital media. So comments that would be defamatory if published in a newspaper or magazine are no less defamatory if published on a website or blog. As long as it is read by only one person (other than the subject) it will give rise to a cause of action.
Also, it is not necessary to be the author of a libellous comment in order to be found liable for it. It is merely necessary that you be the knowing or reckless disseminator of the comment and that definition includes a blogger who suffers a libellous comment to be carried on his or her blog.
There is a defence of “innocent dissemination” to any such charge but it cannot be relied upon if notice of the libellous comment was brought to the blogger’s attention and the said blogger then did nothing in response. However, if the blogger deletes the comment upon receipt of notification, then they should be okay.
So even if the comments section of the blog is unmoderated, the blogger must still exercise editorial control and use his or her discretion to amend or even delete any comments that may be libellous.
I realise that this puts a burden on the blogger of having to make a value judgement about whether or not any particular comment may be libellous and most bloggers need this like a moose needs a hatstand. But such is the price of on-line publishing.
The best defence any blogger can have is a well-constructed comments policy and, in case of complaint, apply it strictly. This is certainly the advice that we have been giving our clients.

Steven:
A moderating blogger has the right to edit, refuse to approve posts, or even file a lawsuit to protect his own blog from being defaced by “cybervandals.” In some circumstances, the blogger can report the offending comment poster for violation of the state and federal criminal laws.
The point is not that you should research or spend “reasonable” time and effort. It may be difficult for you to know what is damaging or false. The real issue for bloggers is how they respond to notices that the information is either false, defamatory, proprietary, or a confidential trade secret. Assertions that you do not moderate are irrelevant.
If you don�t moderate you will simply be white noise. And if you do not respond you will simply be short-lived white noise.

Thank you Daniel Perry for the information, but I didn’t say I don’t moderate comments. Since I’m the only one posting on my solo blog, I don’t “moderate” posts. But I do monitor and moderate, delete offensive comments.
Comments that are vulgar filthy attacks on me I keep. They’re funny and make me look good, magnanimous.
I don’t get comments that attack others, aside from the occasional slur against some big corporate behemoth. I keep those too. Why? If a colossal corporate crap meister comes at me with a lawsuit, I have a publicity machine, called the Blogosphere, that will cause me to be famous, a book deal, and Hollywood film rights following after. Oh the groupies I’ll get from Jerry Springer reject bin.
So all attorneys better look closely at what bloggers can do to defend and attack those who stupidly dare to attack us.
We have weapons they do not understand fully.
And we know how to use them.
Ya better bleeve it.

Steven:
You are right. “Monitor” is, in most blogging instances, a more accurate word. Your comments about the power of bloggers and the Blogosphere are well taken. Corporations and individuals need to think twice before they start a feud.

All of this legal talk is fun to read, but most people don’t understand the point of the lawsuit. I also am being sued by Traffic Power, I have a little website called trafficpowersucks.com. Traffic Power has used this same tactic on other site owners, with the result that the sites were taken down immediately, and that is the point of these lawsuits. Didn’t work this time with Aaron and I, and now the bad publicity for Traffic Power is growing exponentially, as just about every article written about this ends up being posted on several other websites. Just do a search on Google for “Traffic Power” and count up the sites saying bad things about them, then try to find one site saying something good. I stand behind everything I have posted on my site, and can prove everything I have on my site that I wrote. I do have a page devoted to emails I’ve received from others, with the notice at the top that I am posting the emails exactly as I received them (minus the emailer’s names). I have disclaimers on all of the other pages, though I can easily prove everything I say. I think everyone is jumping to a lot of conclusions, I don’t think every blogger has to start putting policies up and worrying about whether or not to delete a post because it might hurt someone’s feelings.
By the way, yes Aaron and I are fighting this, but even fighting an obviously frivolous lawsuit can get to be quite expensive. If you have a few extra dollars left after donating to Katrina aid, please send a little donation my way, I have a donate button on each page of my site.

Well, from what I’ve been reading, you’re mischaracterizing the problem, “tpsucks”. The point of the lawsuit is to try and ascertain the logical line over which “free speech” becomes “slander”. Being true is important, but it’s not the only criteria that’ll be measured. You have the legal documents in front of you: how can you with a straight face say that it’s about “deleting a post because it might hurt someone’s feelings”?

There are very few “obviously frivolous” lawsuits. And it is reckless to simply disregard the ramifications of this lawsuit because you believe it is frivolous. It makes it too easy for you to ignore your own complicity in creating or contributing to the problem.
Of course, if it truly frivolous (though how a judge determines that is open to some debate) the judge may order that you may be reimbursed for the attorney’s fees you spent.

Well, all I can say is that if everyone knew all of the facts of everything that is going on, you would see that this isn’t the big “freedom of speech” issue that it is being mae out to be. Unfortunately, all of the facts can not come out until this is all over. When the judge sees the information that has been submitted in the request for dismisal (which will be available for anyone to see on Monday, if you know where to look) I don’t see how this case won’t be thrown out immediately. And if it does go to an actual trial, I have at least 600 people with companies that have gone throught he same thing as I have with Traffic Power. I can get as many affidavits or even people willing to fly out to Vegas as I need, to prove everything on my site is true, plus a lot of other things I haven’t listed. Not reall worried over here.

I assume that your lawyer has explained to you that dismissals are usually accompanied by permission (called leave of court) by the judge to amend the lawsuit (called a Complaint) to correct deficiencies pointed out in your motion to dismiss. This is quite common. Many lawsuits have several motions to dimiss filed and several amendments of the Complaint before the paperwork and issues are narrowed sufficiently that the lawyers and judge feel they can either move forward or not. Unfortunately, that dismissal-amendment dance can last for months, if not years.
I hope for your sake that the company realizes the fight is not worth it and moves on. I am sure that egging the company on is counterproductive, however.

Didn’t work this time with Aaron and I, and now the bad publicity for Traffic Power is growing exponentially, as just about every article written about this ends up being posted on several other websites. Just do a search on Google for “Traffic Power” and count up the sites saying bad things about them, then try to find one site saying something good. I stand behind everything I have posted on my site, and can prove everything I have on my site that I wrote. I do have a page devoted to emails I’ve received from others, with the notice at the top that I am posting the emails exactly as I received them (minus the emailer’s names). I have disclaimers on all of the other pages, though I can easily prove everything I say. I think everyone is jumping to a lot of conclusions, I don’t think every blogger has to start putting policies up and worrying about whether or not to delete a post because it might hurt someone’s feelings.

Glad you’re covering your bets, but this isn’t about “hurting someone’s feelings”, Bob, and characterizing it this way is potentially dangerous: there are indeed libel and slander laws and it most assuredly applies to weblogs just as it does to any other online publication medium.

Claim for Defamation – The defamation claim as written will likely fail as Aaron cannot defame a corporation. Aaron could disparage a business but the lawsuit must be more specific. Aaron is also partially immune for for the reposting of even defamatory information on his website under a federal statute. A judge may have some concern, though, that the defamatory posts appear to have been “egged on” by Aaron. A judge may perceive that Aaron is encouraging the disparagement of a competitor and thus acting in “bad faith.” A judge would not be impressed that Aaron edited one “offensive post” and yet allowed other posters to trash the company

First, some observations about the lawsuit. It is likely that a Nevada judge will elect to exercise personal jurisdiction over Aaron in Nevada. In cases which support personal jurisdiction, judges see the key issue to be whether the harm is directed to a citizen of its state – in this case the company. Some judges have even supported personal jurisdiction over such minor “contacts” as returning a telephone call to the other state.

As a UK lawyer and blogger, I have spent some time trying to educate my fellow bloggers about precisely this kind of risk. Many bloggers appear to be labouring under the misapprehension that the internet is somehow ‘beyond the reach of the law’. This is not only untrue but actively dangerous

Ha!
One of Aaron’s tips for getting backlinks is to “Be sued or sue someone else like Google…”
Sounds like even if Aaron lost and had to pay $10,000… the number of articles (like this one) and other links may well have been worth it in helping sell more books.
Brilliant!

Censorship is censorship no matter how you disguise it. The lawsuit is a blatant attempt at censorship. The Internet is the only free form of mass communication left and any attempt to censor what is posted is wrong, no matter how right the lawsuit may be. If this lawsuit inhibits any blogger they have won, notwithstanding the legal opinion offered by the lawyer judge. I hope Aaron does not cave in or stop what he would normally do.

Having initially hesitated about buying Aaron Wall’s SEO book, i came as i browsed further to your blog. having read all comments, i am now convinced about the value of his book. I am heading to his website http://www.seobook.com to buy it.
I really hope he wins this lawsuit.
Regards to everyone who participated in highlighting the subject.
Rashid Al-haddad
Middlesex England

“It would seem that in an instance like this that a blogger would want to first approve comments before they are posted to the blog.”
What about forums? I have a forum with dozens of topics that receives hundreds of posts every single day.
It is not even remotely feasible that I would be able to investigate, pre-approve or even monitor the posts that are made to this site.
Suppose a user made a post about how he/she hates Walmart because he/she believes that they are destroying family businesses in America by forcing out smaller mom and pop shops in areas where a Walmart store opens.
If I were the submitter of this post, then this would be my belief; it is my opinion.
And if this is my opinion, how can it be wrong?
How can I, or any blog, or any forum, be held liable for an opinion that I hold and would like to express and share with others?
You can’t prove away an opinion in a courtroom. And you shouldn’t be able to stop me from proclaiming my opinion either.

Hating Wal-Mart is not defamatory. And the poster/commenter stating that they believe that Wal-Mart is destroying family businesses is also not defamatory. Opinions are not defamatory.
But if the poster/commenter makes some statement of apparent fact (i.e., “my family was poisoned” or “… stole from me.”), then you should not assume that you will get Section 230 immunity and moderate, edit, or delete that post.
Your comment also correctly identifies the difficulty of moderating a large or busy forum. I am not suggesting that you guard or preapprove every post/comment. But you should use some minimal effort to watch the dialog on your forum. And, most importantly, if someone alerts you to an apparent problem address it directly rather than ignore it.

No way in hell that case goes to court in Nevada, the same state that has legal prositution! But if Aaron needs a good co-defendent he should call Mr. Larry Flynt. He’s know a thing or too about Freedom of Speech. I can’t believe we have a x-judge commenting in great length on this blog post. God bless the blogging and the internet! : D

Take advantage of your staff : Your company has a staff of experts on hand. As part of their daily ritual, you should have them comment on a minimum of 3 blog posts per day. Once in the morning, once after lunch, and once before leaving. This method splits up the commenting so they are not overwhelmed and this does not interfere with their daily routine.